The main legal point established in the judgment is the limitation on a Magistrate's power to recall an order of dismissal of a complaint, emphasizing the need for filing a second complaint in accordance with the law.

( 1 ) THIS revision is filed by the petitioner/accused under S. 397, Cr. P. C. being aggrieved by the order passed by the learned Magistrate in recalling the order of dismissal of the complaint and discharge of the accused which was passed on 25-9-2000.

( 2 ) THE brief facts leading to this revision are that a private complaint has been filed against the petitioner before the IV Addl. Chief Metropolitan Magistrate, Bangalore, which was registered in C. C. 8351/98 (PCR 327/98) on 21-9-1998 for the alleged offences under Sections 406, 423, 420 and 506 of IPC. After perusal of the complaint and on the submission of the counsel for the complainant, the Magistrate directed the officer to register the case as a PCR and post the matter for orders on 6-10-1998 by his order dated 24-9-1998. Later by order dated 28-7-1999 the IV ACMM directed to register the case for offences punishable under ss. 420, 423 and 506, IPC, and posted for evidence before charge. However, it is seen that as per the copy of the order sheet produced on 25-9-2000 the matter was taken up by the Court wherein it is noted that the complainant and his counsel were absent; stating that the presence of the complainant was required for recording his evidence and since the complainant was not present, the Court dismissed the complaint and discharged the accused under Section 245, cr. P. C. However, on the very same day, i. e. on 25-9-2000 the complainant is shown to have filed an application under S. 309, cr. P. C. along with an affidavit and a memo to restore the complaint on file and recall the order discharging the accused. The Magistrate after hearing the counsel for the complainant as well as the counsel for the accused assigning reasons stating that the counsel for the complainant filed an application and a memo immediately after the orders on the very same day and that the accused was also present on the date of dismissal order. The complainant filed the application and memo at 1. 05 pm. whereas the case was called around 11. 45 a. m. Therefore, the Court opined that the complainant was not negligent in prosecuting the case and has recalled the order. The said order is assailed in this revision by the accused on various grounds.

( 3 ) I have heard the learned counsel appearing for the respective parties.

( 4 ) THE submission of the learned counsel for the petitioner is that the Magistrate has no inherent power to recall the order passed by him unlike the one to be interfered by the Civil Court exercising power under S. 245, Cr. P. C. At the most, that order would have been set aside in revision before the Sessions Judge or before this court. Accordingly, he contended that the impugned order passed by the Magistrate is not in accordance with law.

( 5 ) THE learned counsel appearing for the respondent has submitted that there is no error as such committed by the respondent and the respondent being the complainant was very much present in the Court and the matter has been called out of turn and that it is the Magistrate who has committed the error and the order of recalling by assigning the reasons is justifiable and submitted that there is no irregularity in the order and he has rightly set aside his earlier order. Accordingly, he has prayed for dismissal of the revision.

( 6 ) IN view of the submissions made, the point that arises for consideration is whether any illegality or irregularity has been committed by the Magistrate and whether the impugned order calls for interference.

( 7 ) AT the outset, the learned counsel appearing for the petitioner cited a ruling reported in 1986 Cri LJ 1074 : (AIR 1986 sc 1440) Maj. General A. S. Gauraya v. S. N thakur wherein it is held thus :"so far as the accused is concerned, dismissal of a complainant for non appearance of the complainant or his discharge or acquittal on the same ground is a final order and in the absence of any specific provision in the Code, a Magistrate cannot exercise any inherent Jurisdi